Paradise Villas [2004] QBCCMCmr 85 (12 February 2004)

Last Updated: 30 September 2005

Office of the Commissioner for Body Corporate and Community Management SPECIALIST ADJUDICATION (Adjustment of Lot Entitlements)

Number: 0681-2003

Applicant: AARTJE OTTENS



Respondent: BODY CORPORATE FOR PARADISE VILLAS

COMMUNITY TITLES SCHEME 692

ORDER
Body Corporate and Community Management Act 1997
(Sections 48 and 280)

I ORDER that the contribution lot entitlement schedule for community titles scheme 692 be adjusted so that the allocation of entitlements among the lots is equal, by allocating to each lot an entitlement of one with an aggregate of 21. I FURTHER ORDER, that the costs of the adjudication be paid equally by the applicant and the respondent.

Dated 12 February 2004




G. F. Bugden
Specialist Adjudicator

Office of the Commissioner for Body Corporate and
Community Management

SPECIALIST ADJUDICATION
(Adjustment of Lot Entitlements)

Number: 0681-2003

Applicant: AARTJE OTTENS



Respondent: BODY CORPORATE FOR PARADISE VILLAS

COMMUNITY TITLES SCHEME 692

DETERMINATION
12 February 2004

Application

1. This is an application under section 48(1)(b) of the Body Corporate and Community Management Act 1997 ("Act") for an order of a specialist adjudicator for the adjustment of the contribution lot entitlement schedule in community titles scheme 692 ("Scheme").

2. The body corporate for the Scheme is automatically the Respondent to the application by virtue of section 48(2)(a) of the Act. Owners of lots in the Scheme may elect to become joined as a respondent, but no elections have been received, although the owner of one of the lots did choose to participate in a telephone meeting.

The Scheme

3. The Scheme is situated at 14 Upward Street, Cairns. It relates to building units plan 70940 registered under the Building Units and Group Titles Act 1980. The scheme consists of 21 residential home units in a 3 storey building with security control access. All of the units have 2 bedrooms and one bathroom and their layout and features are substantially the same. They are all air-conditioned, with individual compressor units located on and comprising part of the common property.

4. Each unit has a storage area and car parking space located on common property and allocated by exclusive use by-laws under which the body corporate, in all cases, retains responsibility for repairs and maintenance. These storage areas and car parking spaces are substantially all the same.

5. The common property includes surrounding gardens that contain a swimming pool, to which all lots have equal rights.

6. Indeed, it is fair to say that, in the case of the Scheme, it is the epitome of equality.

Telephone meeting

7. During the course of submissions on the application the committee of the body corporate indicated that it supported the application. It was my view that this in itself did not allow me to make an order in the nature of a consent order, but I still needed to be satisfied that there were no circumstances that would make it just and equitable for the interest schedule lot entitlements not to be equal.

8. The contents of the Commissioner’s file did not disclose any such circumstances, but the only submission made on the application was the one from the body corporate. Mindful of the potential impact of an order on all lot owners and with the intention of gaining more information, I convened a telephone meeting of the parties. At my request, all lot owners were notified of this telephone meeting and were invited to participate. Only one owner choose to do so.

9. The information I gained from the telephone conference confirmed the position as it appeared from the Commissioner’s file – there are no circumstances in the case of the Scheme which would make it just and equitable for the contribution schedule lot entitlements to be otherwise than equal. That is my finding in this matter.

10. As I indicated at the conclusion of the telephone conference, I propose to make an order that the contribution schedule lot entitlements should be equal.

Costs

11. Ordinarily, the applicant in this type of matter will be liable for the costs of the adjudication. Under section 280 of the Act I have the power to make an order relating to those costs if I think the applicant should not be responsible for them. In this case, the applicant put a motion before an extraordinary general meeting of the body corporate on 5 September 2003 to change the contribution schedule lot entitlements so that they were equal. That motion was defeated by one vote.

12. On one point of view, it is not fair that lot owners who voted in favour of that resolution should contribute to the costs of the adjudication. It is at least equally unfair that the applicant, having done everything that could reasonably have been expected of her, should bear all of those costs. As regards the person who voted against the applicant’s motion, I have no power to order them to contribute to the costs, otherwise than through the normal body corporate contribution process.

13. I feel compelled to give the applicant some relief, so I propose to order that the body corporate pay half of the costs of the adjudication. The costs of the individual parties in making and contesting the application are their own costs by virtue of section 48(2)(c) of the Act.

G F Bugden
Specialist Adjudicator